United Kingdom Employment Appeal Tribunal

i)      It is agreed between the parties that the Employment Tribunal decision was signed by Employment Judge Holmes and sent to the parties on 9 May 2011 (“Decision 1”). 

ii)    As a result of a clerical error the last page of Decision 1 recorded that the reasons were sent to the parties on 9 April 2011.  The Employment Judge wrote the date as “9/V/11” when he signed the Reasons.  It is probable that the clerk who inserted the date “9.4.11” as the date on which the Reasons were sent to the parties and entered in the Register misread or misinterpreted the Roman numeral “V”. 

iii)  The Employment Judge was informed of the error and on 12 May 2011 he signed a second decision which he dated “9/V/11” as before (“Decision 2”).  The same clerk signed that the Reasons were sent to the parties and entered in the Register, this time stating the date as 9 May 2011.  It is agreed between the parties that Decision 2 was sent to them on 12 May 2011. 

iv)   The Appellant’s representatives e-mailed the Appeal Notice to the Employment Appeal Tribunal (“EAT”) on 17 June 2011. 

v)     On 22 June 2011 the Appellant’s representatives contacted the EAT to check the progress of the appeal.  They were informed that no appeal notice had been submitted.  They re-submitted the Appeal Notice which was received by the EAT after hours on 22 June 2011 and recorded as having been lodged on 23 June 2011. 

vi)   On 5 July 2011 the Employment Judge signed and dated a Certificate of Correction which stated:

“Under the provisions of Rule 37(1), I hereby correct the clerical mistake or error in the Reserved Judgment re-sent to the parties on 12 May 2011, by deleting the 9 April 2011 and substituting therefore the 9 May 2011 attached, as per the amended judgment.”

The Certificate further contained the following words:

“Important note to parties:

[Any dates for the filing of appeals or reviews are not changed by this Certificate of Correction and amended judgment or order dated 12/5/11.  These time limits still run from the date of the original judgment or order, or original judgment with reasons, when appealing].”

Ground 1: Decision 1 appealed in time

“…inadequate and only indicate that a successful delivery notification was sent but this is not proof of receipt.  It does not preclude a mail failure notification at a later stage.  In any event, it is not prudent to rely on anything other than an acknowledgement from the EAT.  The EAT log (attached) shows that no e-mail was received from the Appellant on that day.  The EAT computer system was functioning properly.”

“[8] I cannot accept the Appellant’s case on this point.  What was faxed to the tribunal was a written document.  The ‘data packets’ that, on the Judge’s findings, reached the tribunal’s fax machine were simply the technological means by which that writing was conveyed and would, if the system had not malfunctioned, have translated into a written document – typically by way of printout, though possibly also by presentation on a screen, at the tribunal office.  In my judgment it would be out of touch with reality to say that in those circumstances a document in writing had not been presented.  The reference to ‘writing’ in R5(1) plainly excludes oral communications; but there is no reason to suppose that the rule-maker was concerned to distinguish between different ways in which written documents could be transmitted – and of course at the time that the 2004 Rules were made the use of fax was widespread and was accepted by the tribunal as an acceptable means of presenting a claim.  What matters, and what the rule-maker was surely concerned with in specifying that any claim should be in writing, is that there should be a presentation to the complaint in a fixed form, which could be communicated in that form to the other party.  That had occurred, notwithstanding the document being, in effect, lost at the tribunal’s end. 

[9] We would add that if the Appellant’s point were right, it would seem logically to mean that the writing contained in an e-mail does not in fact appear until the point at which the recipient clicks on his or her inbox.  Yet it would be absurd to say that a document presented by e-mail had not been received until that point, simply because no writing had physically appeared.”

In my view the fact that the notification was sent by “DAEMON” is not material.  I accept Mr Cohen’s submissions that even if the mail delivery system is not, contrary to his understanding, the EAT’s internal system, the automated system has been triggered because the EAT’s system has notified that there has been a successful delivery to the “londoneat” e-mail address.

Ground 2: service on 23 June 2011 in time to challenge Decision 2

“(1) Clerical mistakes in any order, judgment, decision or reason, or errors arising in those documents from an accidental slip or omission, may at any time be corrected by a certificate by the Employment Judge…”

“[9] I have no doubt at all that, in the ordinary course of a correction, such a correction does not make time run afresh, and that the Registrar’s decision would ordinarily be correct.  There may be circumstances, depending on their own facts, in which a correction is so substantial that it might justify delay, in the sense of a need for further consideration by the proposed Appellant.  But, in my judgment, although the Appellant says here that he was bewildered, as I have no doubt he was, by the fact that, on the face of it, a claim had been dismissed which he had not thought was being dealt with, that bewilderment would have been easily alleviated by reading the Judgment, in which there is no mention whatever of the other claim being considered, never mind dismissed.  As it happens, he received an unsatisfactory response on the telephone.  But once he wrote in, and a Chairman looked at it and appreciated that there was, as was clearly the case, simply an erroneous reference to the second case number, the obvious course would have been for the Tribunal to have made the necessary correction, simply sending a further copy of the first page with the incorrect case number deleted, under cover of a certificate of correction. 

[10] However that is not what occurred in this case.  What occurred in this case was that the certificate of correction was in the terms which I have quoted, which positively deleted the entirety of the reasons, and substituted an entirely fresh judgment.  In those circumstances, the consequence, in my judgment, is that that meant that there was a complete substitution of a fresh Judgment, and that time ran from the promulgation of the new Reasons, i.e. the date of the certificate of correction substituting those new Reasons; alternatively, in any event, that there was sufficient doubt as to that, caused by the way in which the Employment Tribunal chose to issue its certificate or correction, that such would be a ground for an extension of time by the Appellant in this case.”

Ground 3: extension of time

Conclusion